What are the powers of WorkCover NSW to force a company to produce documents?

July 2015

In the case of Perilya Limited v Nash [2015] NSWSC 706 the NSW Supreme Court confirmed that the powers of inspectors under the Work Health and Safety Act 2011 (NSW) (WHS Act) are expansive and are not limited only to health and safety matters. 

On 8 June 2012, a worker fell down a mineshaft at Perilya Limited’s (Perilya) Broken Hill mine and suffered serious injuries. The NSW Department of Trade, Investment, Regional Infrastructure and Services (the Department), as regulator under the WHS Act commenced an investigation into the incident.  The Department issued on Perilya notices for the production of documents under section 155 of the WHS Act.  The Department submitted that such documents were relevant to investigate the incident and also to monitor compliance with the WHS Act (particularly as a similar incident had occurred in 2008) and included: 

Ø   Board of Directors Minutes from May 2008 to December 2012; and 

Ø   Reports and other documents prepared for the purpose of advising the Board of Directors on safety matters at the Perilya mine for the period from 2008 to 2012. 

The Perilya provided documents in response to the notice but they contained a number of redactions. (Deletions).  The investigator issued a second notice requesting un-redacted copies of the board meeting minutes and documents produced. Again Perilya did not produce the documents in un-redacted form, saying that the redacted material did not relate to governance of safety and contained information that was commercially sensitive, confidential and subject to legal professional privilege. A third notice to produce the un-redacted documents was issued. The plaintiff again failed to produce the documents.  

The relevant legislation Under s 155(1) and (2) of the Act, the regulator may serve a written notice on a person to produce documents if the regulator has reasonable grounds to believe that a person is capable of giving information, providing documents or giving evidence in relation to a possible contravention of the Act or that will assist the regulator to monitor or enforce compliance with the Act. A person must not, without reasonable excuse, refuse or fail to comply with a requirement under s 155(5). 

Justice Hall rejected Perilya’s submissions that the Department’s powers under section 155 were limited to NSW or only to those safety matters which occur or are related to NSW. He agreed that ‘reasonably grounds to believe’ was required before the power could be exercised – which Perilya did not dispute.

Justice Hall regarded the powers conferred by section 155 as ‘sufficiently broad’ to allow the Department to obtain the documents. He considered that the Board minutes were of particular relevance in order to determine whether there was a contravention of or to monitor compliance with the WHS Act.

Justice Hall considered that it would undermine a work health safety investigation if an individual issued with a notice had an ‘unrestricted right’ to determine if documents were of relevance and noted that the WHS Act provided protections by way of ensuring confidentiality and the right to claim legal professional privilege.

Justice Hall also dismissed Perilya’s appeal against the quantum of the penalties imposed or the costs order made in the local court proceedings.